Posted
by
Soulskill
on Thursday December 02, 2010 @07:34AM
from the your-uppance-has-come dept.

mrbongo writes with this excerpt from Wired:
"Opening statements in the first-of-its-kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had 'serious concerns about the government's case.' ... Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday."

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

you know... precedent is only set by cases they (judges) choose to publish. They can rule anyway they want and then not let the case be published in the proper way which then prevents it from ever being referenced in future trials.

Most people are also unaware that judges regularly edit the transcripts after the fact. (The reason they don't let you tape record proceedings without permission.)

Actually, precedent is set at the appellate level. The trial court level does not set precedent. And, even then, the precedent is only binding on lower courts. Although, other appellate courts at the same level sometimes use those decisions as "persuasive authority" in their own decisions, even though they are not strictly bound by them.

First, thanks to the ease of putting and accessing cases on the computer, some federal courts now accept the citing of 'unpublished' opinions.

Second, all previously-decided cases establish precedents, but only some are binding precedents, which a court must follow, while most are merely persuasive, which a court may or may not follow as it sees fit. It's perfectly acceptable to cite the opinions of trial courts, if that's the best thing you've got.

Actually, double jeopardy applies to trials regardless whether it was an acquittal or conviction. The defense cannot ask "for another trial" when found guilty, they can appeal. There has to be a basis for the appeal but an appeal is not another trial of the same kind, you go to the court of appeals and a judge or judges will determine if something was done wrong during a trial in order to warrant a change in the decision.

Also, the only way a trial can be retried over different charges that cover the same actions is if they are significantly different charges (you can't charge someone with manslaughter and then later charge them with murder for the same death. You can however charge them later with robbery if the murder arose from the robbery).

And from wikipedia: "Nor can the state voluntarily dismiss a case after trial has begun in order to start over." If there is declared a mistrial, or if the Judge dismisses without prejudice then yes, they can start over. But a prosecutor cannot voluntarily drop a case and then restart it. Double jeopardy forbids it.

Just in case you don't think wikipedia is trustworthy, it seems the entire paragraph in which had a lot of that information was copied directly from the Encyclopedia britannica. Double Jeopardy [britannica.com]

Actually, this would be the proper time for the defense to prove that he did not in fact break the law. The jury has one purpose. They are to be educated on the law that the prosecution says the defendant broke, and then decide if he actually broke that law. They're not supposed to decide if the law is "fair" or not. That's what legislatures and supreme courts do. Not juries. And while we all love to think that by some divine coincidence a jury will be selected that all agree the laws were broken, but

Actually, this would be the proper time for the defense to prove that he did not in fact break the law

This is one time that I agree. If you actually read the DMCA, there isn't any part of it that applies to the situation. Modifying a player that is already capable, on its own, of accessing the work protected by the tech measure, simply isn't an act of making/selling a device that circumvents tech measures that control access to the work. There just doesn't seem to be any part of DMCA as written, that prohibits this sort of thing. All the jury has to do is apply the law that Congress wrote, rather than bad precedents, and it'll be an innocent verdict.

If the industry buys a new law to amend DMCA to prohibit this sort of thing, then I'll start to disagree with you, and say the people should uphold fairness. You say that thinking about fairness is what legislatures and supreme courts do, and that is a noble thing for us to strive to get our governments to do. Yes, it is our responsibility to some day elect legislatures that think about fairness, and if the law isn't fair, then it's our fault.. But if a person does not believe the public has successfully done that yet, then from their point of view, thinking about fairness has not yet happened at any point in the process, so when it's their turn to be on a jury, that is last chance for fairness to play any role in the system. If Congress didn't worry about fairness, then jurors are the only place fairness can be considered before an innocent person is harmed by government force for no good reason. If you're a juror and you don't think the lawmakers have tried to be fair, then you must nullify.

And let's remember, this is DMCA we're talking about here. Go ahead and just try to make a case that congress and the courts even paid lip service to fairness. It's one thing for a racist to disagree with a legislature that insists a black man be allowed to vote. He might wish the legislature hadn't done that and disagree that they should have. But deep down he knows that at least they did that due to public pressure and a shitload of people demanding to be treated like people. Fairness is the whole point of civil rights laws, and a desire to not let fairness go too far, is the "reason" someone would nullify such laws. You can't compare this type of situation to how DMCA got passed. The section 1201 prohibitions are pure bullshit.

Let me try another tack: if nullification has been used for injustice, does that mean it shouldn't be used for justice? A juror can't blow off his responsibility just because some people in the past have fucked it up.

When I get called for jury duty, I pretend I've never heard of nullification. Then, if I get stuck with a drug possession case, I strike a blow against Prohibition by persuading the other jurors to acquit.

I didn't see it shared in the comments, but regardless of the tirade, the prosecution has decided to move forward with the case:http://www.wired.com/threatlevel/2010/12/no-deal-in-xbox-modding-case-trial-begins/

Having been prosectued under the NET act and DMCA the judge in our cases expressed conserns as well. While the goverment had a better case, the judge felt this was closer to a civil case then a criminal a case, and went on to explain the futher education is required by the goverment of what this legislation means for the average person. In the end I plead guilty, as we were one of the first cases to go and had no money for a real attorney, plus probation is much better then 3-5 years in jail.

I think the goverment should prosecute in severe cases where monterary gain or where there is conterfit good involved. But for modders of an Xbox, that is like prosecuting a mechnanic for installing upgrades to your car. At best a Civil case, at worst a waste of federal tax payers dollars and judicial resources

Im surprised the defense hasnt considered a "substantial non-infringing uses" defense. For instance playing backup disks and homebrew. The well known issue of scratched disks, and the desire for interoperability with non-microsoft approved software. This is separate from "fair use" in that the illegality of the mod chip itself is challenged.

The term "Fascism" is derived from the Italian word "fascio" which means bundle. It was first applied by Mussolini describing an economic philosophy (different from capitalism) where government and business are one "bundle" of "fascio."

To enforce such an arrangement, you eventually need a harsh dictator ship, but as an economic principle we are almost there.

more likely he realizes the court has more valuable things to allocate time and taxpayer money on than going after some kid who hacked his xbox. Or maybe he saw that their argument was pushing beyond the confines of the allegedly broken laws, and he wasn't about to let his courtroom be a tool for them to advance their agenda.

The judge initially dismissed fair use arguments by the defense, but now seems to be reevaluating that decision. Probably because he too the time needed to understand all the technical and legal details of the case. The DMCA is not a 1-pager you read overnight and its implication on other lega areas is huge.

And the kid absolutley did not just hack his X-box. He had a small business selling modded X-boxes to other people, and was recorded by an agent doing exactly that.

I absolutely think that modding should be allowed for several reasons - so I am not siding with the prosecution here. I am just trying to make the facts clear to everyone.

Depends on what software he was installing. If he was just modding the Xbox and reselling them, there should be no beef. However, I also know modders sometimes preload the modded boxes with a bunch of games as well, which puts them on the wrong side of the law. I'm not sure if that's the case here.

The DMCA doesn't cover your car (yet). Modifying your car doesn't let you do things with it that the manufacturer guaranteed its partners you wouldn't.

Modifying your tailpipe or headers or headlights doesn't circumvent Copyright protection software or hardware. The problem with xbox modding, from the perspective of this case, is that it circumvents a system used to protect Copyrights and therefore falls under the DMCA.

Personally, I wish the DMCA would curl up and die a horrific death, but that said, its d

The modded XBox will be used almost exclusively to run stolen software.

You may be right about the Xbox 360 platform. But if it were a modded Wii or a modded original Xbox, there might be more evidence of actual substantial noninfringing use. Unlike the Xbox 360, which has XNA, these older consoles have no official environment for running original software developed outside a traditional corporate environment, and for this reason they have picked a vibrant modding community for running such "homebrew".

But modding a wii or original xbox allows programmers to create their own original content doesn't it. I don't think your argument holds water. If I understand what you are saying, that because there is no non-infringing content, it is wrong to mod it.The counter argument is that, by moding it, non-infringing content can be created.

Except if you want to actually test/debug your XNA-developed games on the 360, you need to pay a $99/year subscription fee. If you don't pay that fee, you can't do anything with your homebrew game other than play it on PC. Additionally, XNA only allows development of games - there's far more to homebrew than just gaming.

Yes, but when you say "Let's ignore for a moment emission laws", then you're missing the point. There are many laws that limit not only how you drive on the road, but WHAT you drive. You must have turn signals, you must have a license plate, etc.
When you mod an Xbox 360, you lose the right to take it online because it no longer conforms to the specs that the owners (Microsoft) of the road (Xbox LIVE) have set.

Sorry, I made the mistake of confusing this debate for the one about Microsoft issuing perma-bans for modded consoles on their online service
I'm actually on the other side with this. If he owns the box, he should be able to mod it.

It sounds like he had the point just right to me. Neither he nor any of the other parent posts state that you should be able to take a modified XBox online. It's generally thought that the loss of online access is an acceptable, though annoying, side effect of modding.

This case is NOT about being able to put a modded XBox online. These guys are perfectly happy to use their XBoxes "Off-road." This case is about whether or not it's illegal to mod it in the first place (or more accurately, whether someone

This has nothing to do with taking it online, its about selling them. You can still sell a modified piece of shit car that puts out more smog than it does horse power. You're a dick for doing it, but Ford has no say in the matter. Microsoft shouldn't have a voice in what this person does with their product once it leaves their warehouse when they sell it to the store (which then sells it again, meaning that he didn't even buy it from Microsoft - he bought it from Target/Walmart/GameStop/Amazon/etc).
Its si

Example the first: a car modded to run over different terrain. Examples: someone local to me, with a love of VW Beetles, put a VW Beetle body on a Jeep CJ Chassis, and called it a "Veep". It's every bit a 4X4 as the Jeep was, and also every bit as street-legal, but now he has something that is truly unique.

Example the second: a car modded to run on a different fuel. Examples: Propane, natural gas, vegetable oil, wood, electricity. Some of these are available a

A lot of the older laws actually articulate this(not so much recently). Giving someone the means to commit a crime is not a crime until the crime is committed. I can break and enter a building as long as it is not with the intention of committing a crime. It protects people that hear screaming in a house or see a burning house and break in to provide assistance.Same with lock pick equipment is in most places. Ownership is not a crime unless you are intending to use them to commit a crime. I really think the change in how the laws are written is warning of how much countries are becoming parental states(kinda like police states).

I'm going to keep saying this every time console modding comes up. (Note: I have a PS3, not an Xbox - I even have a game for the PS3... somewhere)How about if I mod an Xbox to run Linux and install VLC, the use that to play content recorded from ATSC OTA using GB-PVR.

I have GB-PVR, it does record local channels OTA, I watch those recordings already using my PS3, though sometimes the PS3 decides that it can't handle minor errors in the recording. VLC wouldn't have that problem. Unless you want to make the cl

Except the kid even stated that he was modding Xboxs exclusively to run backups and homebrew software due to the way that the xbox disc tray scratches up discs. Just because it will be able to run pirated software doesn't mean it will be used like that.

The modded XBox will be used almost exclusively to run stolen software.

I hacked my Wii so I could run MPlayer on it to watch movies (ripped from the DVDs I lawfully purchased) streamed my home fileserver. Every other program on my Wii is in the form of games I bought at local retailers. If you think console mods are only for violating copyright, you're missing out on a lot of other cool stuff.

The modded XBox will be used almost exclusively to run stolen software.

Exclusively? WTF! Seriously, what makes you think that?

Logical thinking and personal experience.

Sure, there are possible non-illegal applications for this, and many of us that do mod our consoles draw some inherent enjoyment from the hobby. But the principle motivation for someone paying someone else to mod their Xbox is almost certainly in part to play pirated media (almost certainly meaning only that actually polling every individual for their motivations is impossible).

Refusing arguments by analogy is absurd. Analogy is the only way to compare what we know and have experience with to new situations. The vary basis of language is analogy and categorization -- we come to a common agreement on what constitutes "yellow" and treat all things of that class the same way even though it's unlikely that your yellow schoolbus is the the same color as my yellow lemon.

Argument by analogy is incomplete, in that there are differences between the actual point of contention and the analogous situation, and those differences might make a particular analog inapplicable to a particular situation, but dismissing analogy as an invalid tool for legal or other argument is just silly.

The category of "things protected by IP laws that you can modify aftermarket" seems like a pretty relevant place to start comparison. If you want to object to the analogy based on some specific difference between cars and game consoles feel free, but don't try to dismiss the comparison out of hand.

Also note that "street legal" is an irrelevant comparison for game consoles, as their operation is not regulated by the state, nor is the case at hand about the operation of the modified device -- which the defendant did not do -- only the modification itself and the sale thereof.

Refusing arguments by analogy is absurd. Argument by analogy is incomplete, in that there are differences between the actual point of contention and the analogous situation, and those differences might make a particular analog inapplicable to a particular situation, but dismissing analogy as an invalid tool for legal or other argument is just silly.

To put it differently, an analogy is not an argument, it is a tool for communication. You cannot end a proof on an analogy; it's not logic, and it doesn't show anything. What it does is open up the floor to a new, related discussion, in order to make a related argument in isolation from complications that arise in the original.

The purpose and actions are most certainly not the same. As I understand it, modding Xbox 360 drives doesn't even enable you to run homebrew (except through obsolete hacks that no longer work on recent Xboxes). Same with modding Wii drives. They don't even let you use imported games. The only two purposes for drive-hacks on secure consoles (which sign code and region restrictions) are piracy and backups, and you can take a guess as to what the actual, practical percentage of people doing either of those is.

No, because iPhone hacks can be used for copying copyrighted software (legally or not) and for running unauthorized software. Xbox 360 drive hacks can only be used for copying copyrighted software, legally or not. If you want to run unauthorized software you need an entirely different class of modification, which as far as I can tell is not what this guy was performing.

The quotes seem pretty direct. He has some valid points. You're going to bring into open court two witnesses that had to break the law to get your evidence and then seek to have that fact kept from the jury? This is no different than getting warrants after the fact or say a vice cop not just propositioning a hooker but going ahead and sleeping with her, paying her, then arresting her and seeking to keep much of that out of court.

This is no different than getting warrants after the fact or say a vice cop not just propositioning a hooker but going ahead and sleeping with her, paying her, then arresting her and seeking to keep much of that out of court.

... if that was possible I would seriously consider a change of career...

Oh, you must not be familiar with the State of Arizona and Maricopa County's Sheriff Joe Arpaio? He had deputies in a prostitution sting operation receive 'happy endings' and those cases got thrown out.

As much as I want people to be able to jailbreak their own devices and despite my prejudice against the prosecutors' case any judge that lets lose with a tirade in a court room needs to be removed from the bench. Nobody should be subject to a verbal assault by a judge or other public employee.

There are rules to follow in the legal system. In this case the judge believe that the prosecution may have seriously failed to follow those rules - in spite of the fact that his job is to know those rules very well indeed. And if the judge suspects your failure to follow the rules are deliberate or due to laziness you may be found to be in contempt of the court - something which can have serious consequences for your case and perhaps even your job in the legal business.

If you show up in front of a judge with a blatant disrespect for the court, the court will give you a hard time for it.

"Please place the weapon the floor, pretty please, and then we'll put you in these nice, shiny handcuffs"

"I would very much appreciate it if you didn't cross that safety barrier that you're now crossing, thank you very much."

Nobody should be subjected to anything *unnecessarily* but this is a judge dealing with witnesses who broke the law while collecting evidence, jury-tampering and a prosecution that doesn't see the harm in what they did and continually asserts that to the court and doesn't see the severity. He's probably also extremely annoyed at how a valid court case in quickly turning into a farce at tax-payers expense.

Shouting is not about aggression - it's about tone of voice, volume, and choice of words. If you're shouting in someone's face directly, or pushing forward towards them, that's just rude and confrontational. But it doesn't mean you can't *shout* at them without doing that, only making them realise your displeasure through their own obstinacy and yet not feel threatened.

Shouting at someone, especially someone who should know how irate people behave and be performing their *own* simple professional duty, won't kill them. Teachers shout at kids in school. I shouted at my letting agent last year (and without that, I wouldn't have working plumbing, or my landlord removing their contract, reporting them for breach of contract, extracting *my* deposit from them via a legal process, and dealing with me direct for even the most minor of problems and actually doing a better job). Parents shout at their children in supermarkets. I'm actually *glad* when some kids get told off because it means that the parent is paying attention to their actions and cares about the outcome for everyone - those parents who just say "Come on, now. I won't tell you again. No, really, come on. This is the last time I'll ask you. Please come on, Jack. Jack, if you come now, I'll give you sweeties" REALLY, REALLY need to have a room full of other parents shout at them until they understand why that doesn't work.

It's not a first resort, but it's the last (legal) resort of the ordinary man. We can't all be martyrs and speak perfectly calmly no matter how annoyed we are, and the *WORST* we can do without committing a crime is shout at someone. It's also, generally, incredibly effective. Try politely asking someone on a complaints desk to get their supervisor. In quite a lot of cases it won't happen, especially if they know they are in the wrong. Without shouting, you end in the the same position. Now try shouting only AFTER they refuse to do that. Now try being obstinate and refusing to leave the building until your problem is solved. Now try shouting some more. Nobody gets hurt, injured, threatened or abused, they just get talked to in a loud and certain tone. It has a surprisingly greater result at no significant psychological cost and it's the most you can *legally* do (I do not in any way condone actually threatening or hurting people - by that point, you've lost the argument and sight of what you're trying to achieve).

If you're really that devastated by someone shouting at you, it makes me wonder just how much of global life you're ready for, what your parents did when you ran into the road, and what attention your teachers were paying to you at school.

Shouting *is* the non-aggressive alternative here. The judge is showing that the lawyers are on their last chance and if they don't buck their ideas up, he'll be seeking sanctions against them. This is his way of warning them, and if it was done in a polite note about "The court disagrees with the prosecution", no-one would pay it any attention and if sanctions were then applied, the lawyers would claim there was no way they could see it coming. The judge has been definite, assertive, perfectly clear, aired all his concerns, indicated the seriousness of this to everyone and yet NOT ONE PERSON has been hurt in any way. I just wish a few more parents were like him, really.

She's got no issues with berating people in her courtroom whether they be plaintiff, defendant or some random member of the audience. Granted, her show is dramatized for daytime tv ratings purposes. However, she was given the show because of her outspoken nature.

Whether you like it or not, when you step into a courtroom you're in the judge's domain. S/he has rule, and if you are wasting time I'd let you know about it too.

As far as I'm concerned, anybody guilty of the criminal stupidity displayed the the prosecution in this case deserves not only to be chewed out by the judge, but to be thrown in jail for contempt. However, I myself am not a judge; I'm just Lilith's heart-shaped ass.

Nobody should be subject to a verbal assault by a judge or other public employee.

The tirade could have been very methodical and deliberate. Nowhere does it say that he turned purple, yelled, and blew spittle all over the bench.

OTOH, public employees have every right to "verbally assault" people who are just boneheaded and interfere with the proper function of government. As a public employee I have every right to "assault" you if I tell you the rules, ask you to follow them, make sure you understand them, and then you still come into my construction site and put yourself and my crews

Just because something can be used for infringement doesn't mean it WILL be used for infringement. Therefore the action of modding the console shouldn't be illegal regardless the purpose. The only thing that they should consider is whether he DID pirate games, and thus hit him for the piracy. If there was no piracy, then there was no infringement. There should be no crime here regardless.

Most people who mod their XBoxes do so in order to play pirate games.If this was the primary purpose of the mods then he's committed a crime

If that's what this trial was about, they should have charged him with contributory copyright infringement.

Instead they blew off all the concerns about game piracy, and charged him with two bullshit counts of DMCA violations, in an attempt to widen the application of DMCA beyond its original wording. This is about prohibiting people maintaining their own equipm

If you modded the boiler so that it fully or semi bypassed the gas meter in order to provide cheap/free heating then the boiler manufacturer and gas companies would complain.

It's highly unlikely that the boiler mfg would complain - you already bought the boiler & if you modify it, they no longer have to provide warranty coverage. On the other hand, the gas company would certainly complain in that you are stealing a physical product which has a real world cost to produce and distribute.

After all, there's no way to rule innocent men. The only power any government actually has is the power to crack down on criminals. But if everybody is a criminal, what can the government do? If the government tries to cash in on guilt, what will it do if the "criminals" feel no guilt over bullshit crimes?